Repwest Ins. Co. v. Sasan Family Chiropractic, P.C.

Full title: REPWEST INSURANCE COMPANY, Plaintiff, v. SASAN FAMILY CHIROPRACTIC, P.C.…

Court: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 11

Date published: Jul 21, 2016

2016 N.Y. Slip Op. 31413 (N.Y. Sup. Ct. 2016)

Opinion

INDEX NO. 150299/12

07-21-2016

REPWEST INSURANCE COMPANY, Plaintiff, v. SASAN FAMILY CHIROPRACTIC, P.C., ALLEVIATION MEDICAL SERVICES, P.C., PEOPLES ACUPUNCTURE, P.C., L&S ACUPUNCTURE, P.C., I BARAQUE MEDICAL CARE P.C., AMIT GOSWAMI, M.D., ACTIVE CARE MEDICAL SUPPLY, CORP., UPSCALE MEDICAL DIAGNOSTICS, P.C., AEE MEDICAL DIAGNOSTIC, P.C., NEXRAY MEDICAL IMAGING, P.C., MEDWAY MEDICAL DIAGNOSTICS CARE, P.C., VAIS MEDICAL CARE, P.C., RAYMOND JEAN BAPTISTE, MARLON NUGENT and MODERN CHIROPRACTIC, P.C., Defendants.

JOAN A. MADDEN, J.

:

In this action for a declaratory judgment as to non-fault coverage, plaintiff Repwest Insurance Company ("Repwest") moves for an order pursuant to CPLR 3212 granting summary judgment against defendants Active Care Medical Supply Corp. ("Active Care") and Alleviation Medical Services, P.C. ("Alleviation") (collectively "defendants"). Defendants each submit separate opposition to the motion.¹

1 Active Care and Alleviation are the only remaining defendants. By order dated May 21, 2013, plaintiff secured a default judgment against non-appearing defendants Sasan Family Chiropractic, P.C., Peoples Acupuncture, P.C., L&S Acupuncture, P.C., I Baraque Medical Care, P.C., Amit Goswami, M.D., Upscale Medical Diagnostics, P.C., AEE medical Dianostic, P.C. and Medway medial Diagnostics Care, P.C. Plaintiff settled and discontinued the action as against defendants Nexray Medical Imaging, P.C., and Vais Medical Care, P.C. Although plaintiff's investigator interviewed Baptiste, it does not appear that he was served, since plaintiff has not filed an affidavit of service. Plaintiff has also failed to file an affidavit of service as to defendants Nugent and Modern Chiropractic. Thus, since Baptiste, Nugent and Modern Chiropractic were never served, the complaint will be dismissed without prejudice as to them.

On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, by submitting evidentiary proof in admissible form sufficient to establish the absence of any material issues of fact. See CPLR 3212(b); Winegrad v. New York University Medical Center, 64 NY2d 851, 853 (1985); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Meridian Management Corp v. Cristi Cleaning Service Corp, 70 AD3d 508, 510 (1^st Dept 2010). Once such showing is made, the opposing party must "show facts sufficient to require a trial of any issue of fact." CPLR 3212 (b); see Zuckerman v. City of New York, supra at 562.

Plaintiff contends that it is entitled summary judgment declaring that defendants are not entitled to no-fault benefits on the ground that the July 13, 2011 collision was intentional and staged for the purpose of submitting fraudulent insurance claims. It is well settled that a deliberate and staged collision caused in furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance. See Nationwide General Insurance Co v. Bates, 130 AD3d 795 (2^nd Dept 2015); Liberty Mutual Insurance Co v. Young, 124 AD3d 663 (2^nd Dept 2015); Emanvilova v. Pallota, 49 AD3d 413 (1^st Dept ), lv app dism 11 NY3d 826 (2008); Travelers Indemnity Co v. Cruz, 40 AD3d 362 (1^st Dept 2007); Liberty Mutual Insurance Co v. Goddard, 29 AD3d 698 (2^nd Dept 2006); Eagle Insurance Co v. Gueye, 26 AD3d 192 (1^st Dept 2006); State Farm Mutual Automobile Insurance Co v. Laguerre, 305 AD2d 490 (2^nd Dept 2003).

In support of the motion, plaintiff submits an attorney's affirmation, an affidavit from its Supervisor Arlene Daddazio; the pleadings; the police accident report for a collision on July 13, 2011 involving a U-Haul vehicle driven by defendant Baptiste, and defendant Nugent as a passenger; Baptiste's application for no-fault benefits dated July 22, 2011; Nugent's application for no-fault benefits, which is not dated; no-fault verification of treatment forms listing Baptiste and Nugent as patients and Active Care as the provider; no-fault verification of treatment forms listing Baptiste and Nugent as patients and Alleviation as the provider; an affidavit from John Moran, a licensed private investigator; the transcription of Moran's conversation with defendant Baptiste on January 9, 2014; an affidavit from Baptiste sworn and dated January 9, 2014.

In her affidavit, plaintiff's supervisor, Arlene Daddazio, states that "my duties include the supervision of the handling and management of all no-fault claims files," she is "personally familiar with Repwest's regular business practices regarding all aspects of no-fault claims handling," and "I am also familiar with and have personal knowledge of Repwest's standard office procedures followed in the ordinary course of business." She states that "I am fully familiar with the facts and circumstances of this action, based on my personal knowledge and based upon my review of the claim files." She states that on August 6, 2011 and December 29, 2011, Repwest received NF-2s signed by Baptiste and Marlon Nugent," seeking no-fault benefits, and that Repwest also received two bills from Active Care and Alleviation totaling $7,510.06 for treatment to Baptiste, and four bills from Active Care and Alleviation totaling $8,400.44 for treatment to Nugent. She states that "[b]ased on discrepancies in the Police Report, NF-2s, medical bills and several other factors that raised questions as to the legitimacy of the Collision, Repwest retained the services of a private investigator to determine the legitimacy of the Collision," and on January 4, 2014 John Moran ("Moran"), a private investigator retained by Repwest, obtained a recorded statement from Baptiste, who ws the driver of the U-Haul Vehicle," and that Baptiste confessed that the Collision was not legitimate and was, in fact, a staged intentional loss."

In his affidavit, John Moran states that he is a licensed private investigator who personally conducted the investigation of the July 13, 2011 collision at issue in this action involving a Repwest insured U-Haul vehicle, that was driven by defendant Baptiste with defendant Nugent as a passenger. Moran explains that on January 9, 2014, he personally interviewed defendant Baptiste regarding the collision, and with Baptiste's permission, recorded his statement. Plaintiff submits the transcript of the recorded conversation and Moran states that he has "reread the transcription as well as listen to the audio recording and certify that said transcription, annexed hereto as Exhibit 1, is true and accurate of the verbal interview." Moran also states that the "transcribed statement in the file was created by me in the regular and ordinary course of business and under my business duty to transcribe audio recordings that I obtain as an investigator." Morgan further states that his affidavit is based on his "personal knowledge and a review of the transcribed statement to refresh my recollection."

Moran states that "[d]uring the interview, Mr. Baptiste confessed to me that the Collision was staged and intentional," and "further admitted that he was instructed to rent a U-Haul vehicle by his friends known only as 'Magic' and 'Popular,'" and that Magic and Popular "placed" Nugent in the U-Haul vehicle. Moran states that Baptiste "initially believed he was renting the U-Haul vehicle to help pick up some furniture," but "later on [he] was told that a car would 'stop short' in front of the U-Haul vehicle to cause an intentional collision and that Mr. Baptiste should expect it." Moran states that Baptiste "admitted that when the adverse vehicle stopped short in front of him, he intentionally hit it from behind," and that the collision "occurred exactly as planned." Moran further states that "Baptiste was told he would make money from this Collision but did not receive any money since he never heard from Popular following the Collision," and that "Baptiste was also directed to get medical treatment at a certain facility." Moran states that Baptiste "signed an affidavit, on January 9, 2014," which he notarized and a "true and accurate copy" of Baptiste's affidavit is annexed,

Plaintiff submits an affidavit from Baptiste, sworn and signed on January 9, 2014, and notarized by Moran. Although the affidavit is a bare bones pre-printed form that is mostly conclusory, Baptiste specifically identifies himself as the "driver" of the U-Haul vehicle involved in the collision on July 13, 2011, "with the expectation that I would profit monetarily," but "I did not profit from this accident."

Under the circumstances presented, plaintiff has sustained its prima facie burden for entitlement to summary judgment. Although by itself, Baptiste's affidavit would not be sufficient, when his affidavit is considered together with the transcript of his recorded conversation detailing his role in underlying scheme as the driver of the U-Haul vehicle, as well as the affidavit of investigator Moran who personally interviewed Baptiste, recorded the conversation and certifies as to the truth of the transcription, plaintiff has made a sufficient prima facie showing that the collision was intentional and staged, and as such, is not a covered accident under plaintiff's policy. See Liberty Mutual Insurance Co v. Young, supra; Emanvilova v. Pallota, supra; Travelers Indemnity Co v. Cruz, supra; Liberty Mutual Insurance Co v. Goddard, supra; Eagle Insurance Co v. Gueye, supra; State Farm Mutual Automobile Insurance Co v. Laguerre, supra. Notably, the statement in the affidavit of plaintiff's investigator that defendant Baptiste told him that he intentionally struck the cab, is an admission and as such, properly considered as competent evidence in support of plaintiff's prima facie case for the purpose of showing that the collision was staged. See Tower Insurance Co of New York v. Hossain, 134 AD3d 644 (1^st Dept 2015); Tower Insurance Co of New York v. Brown, 130 AD3d 545 (1^st Dept 2015); Castlepoint Insurance Co v. Jaipersaud, 127 AD3d 401 (1^st Dept 2015); Reynolds v. City of New York, 221 AD2d 185 (1^st Dept 1995).

The burden shifts to defendants to raise a triable issue of material fact. In opposition, defendant Active Care submits only an attorney's affirmation and copies of its prior demands for discovery. Active Care argues that plaintiff fails to submit "substantive admissible" evidence demonstrating that the collision was intentional; plaintiff relies on hearsay and unsubstantiated allegations; and issues of fact exist as to whether the collision was staged. Specifically, Active Care objects that Baptiste's statement is hearsay and that it is entitled to depose him to "verify the veracity and accuracy" of his statement; Baptiste's statement was the "product of coercion and duress" and his "confession" is "equivalent" to a general release that was neither knowing nor voluntary; and even if Baptiste's statement is admissible, it does not definitively establish the intentional nature of the accident, since he rented the truck to help move furniture and hit the brakes when the vehicle in front of him stopped short. Active Care also argues that summary judgment is premature, as plaintiff has failed to comply with its discovery demands and no depositions have been held.

In opposition, defendant Alleviation submits only a three-page attorney's affirmation asserting that plaintiff relies on "inadmissible evidence" that is insufficient to demonstrate entitlement to summary judgment. Specifically, Alleviation objects that Daddazio's affidavit is based on hearsay and documents not in evidence; Moran's affidavit is based on hearsay; Moran's conversation with Baptiste has no "probative value" since Baptist was not subject to cross-examination and was "led through his statement" by Moran; Baptiste's affidavit was "clearly not written by him and is a 'sign on this line' document"; the credibility of Baptiste and Moran should be assessed at trial; and the police report is not certified. Alleviation also argues that plaintiff relies on a theory of fraud to deny coverage and must prove all the elements of fraud by clear and convincing evidence.

Defendants' arguments are without merit. The affirmations of defendants' attorneys, which primarily attack the admissibility and veracity of the affidavits and statements, contain no evidence showing or suggesting that the collision was neither intentional nor staged. See Tower Insurance Co of New York v. Brown; supra. To the extent both defendants object that plaintiff fails to make a prima facie showing, those objections are not persuasive, given the court's determination that Baptiste's affidavit considered together with the transcript of his recorded statement as supported by the affidavit of investigator Moran, who personally interviewed Baptiste, recorded the conversation and certified that the transcription was accurate, are sufficient to establish that the collision was intentional and staged. As noted above, the affidavit of plaintiff's investigator stating that he spoke with defendant Baptiste, who admitted not only that he was instructed to hit the cab when it stopped short, but also that he, in fact, intentionally struck the cab in the rear when it stopped short in front of him, is admissible to show that the collision was intentional and staged, and as such, sufficient to establish prima facie entitlement to summary judgment. See Tower Insurance Co of New York v. Hossain, supra; Tower Insurance Co of New York v. Brown; supra; Castlepoint Insurance Co v. Jaipersaud, supra; Reynolds v. City of New York, supra.

Contrary to Alleviation's argument, where as here, an insurer premises a claim or defense on lack of coverage, the insurer can establish such claim or defense by a preponderance of the evidence, and is not required to prove that the collision was the product of fraud which would require proof of the elements of fraud by clear and convincing evidence. See V.S. Medical Services, P.C. v. Allstate Insurance Co, 25 Misc3d 39 (App Term, 2^nd Dept 2009).

Although Alleviations objects to Daddazio's affidavit and the police accident report, the court's determination as to plaintiff's prima facie case is not based on those documents.

While defendant Active Care argues that summary judgment is premature due to outstanding discovery, it has failed to show that facts essential to oppose the motion are in plaintiff's exclusive knowledge, or that discovery may lead to facts relevant to a viable defense. See Woods v. 126 Riverside Drive Corp, 64 AD3d 422, 423 (1^st Dept 2009), lv app den 14 NY3d 704 (2010); Duane Morris LLP v. Astor Holdings, Inc, 61 AD3d 418 (1^st Dept 2009).

The balance of defendants' arguments are likewise lacking in merit.

Thus, in the absence of a triable issue of fact as to whether the collision was intentional and staged, plaintiff is entitled to judgment as a matter of law declaring that it is not obligated to provide any no-fault coverage to defendants Active Care and Alleviation with respect to the July 13, 2011 collision.

Accordingly, it is

ORDERED that the plaintiff's motion for summary judgment against defendants Active Care Medical Supply Corp. and Alleviation Medical Services, P.C., is granted; and it is further

ORDERED, ADJUDGED AND DECLARED that plaintiff Repwest Insurance Company owes no duty to defendants Active Care Medical Supply Corp. and Alleviation Medical Services, P.C. to pay any no-fault claims with respect to the July 13, 2011 collision; and it is further

ORDERED AND ADJUDGED that any arbitrations or lawsuits brought by defendants Active Care Medical Supply Corp. and Alleviation Medical Services, P.C., relating to the July 13, 2011 collision, are permanently stayed; and it is further

ORDERED AND ADJUDGED that defendants Active Care Medical Supply Corp. and Alleviation Medical Services, P.C. are permanently enjoined from commencing any further lawsuits or arbitrations against Repwest Insurance Company with respect to the July 13, 2011 collision; and it is further

ORDERED that the complaint is dismissed without prejudice as against defendants Raymond Jean Baptist, Marlon Nugent and Modern Chiropractic, P.C., the Clerk is directed to enter judgment accordingly. DATED: July 21, 2016

ENTER:

/s/_________

J.S.C.